CHANDRA PRAKASH TIWARI AND ORS. versus SHAKUNTALA SHUKLA AND ORS.

Citation: [2002] 3 S.C.R. 948 · Decided: 09-05-2002 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
CHANDRA PRAKASH TIWARI AND ORS. 
v. 
SHAKUNTALA SHUKLA AND ORS. 
MAY 9, 2002 
B 
[G.B. PATTANAIK AND UMESH C. BANERJEE, JJ.] 
Service Law : 
Constitution of India, 1950-Article 309 and VI/th Schedule, list II, 
C item 2-Police Act, 1861-Sections 2, 7, 12 and 46-U. P. Government Service 
(Criteria for Recruitment by PromotiOn) Rules 1991-Selection-Sub-lnspector 
of Police for promotion to Inspector-Selection Committee adopting criteria 
in terms of specific Police Order of 1965 which stood amended upto 1998 and 
not in terms of General Rules of 1994 framed under Article 309-Single Judge 
D of High Court negating Selection-Division Bench confirming the same as 
criteria under Rules of 1994 not followed-On appeal, held unless the General 
Rule specifically repeal effectiveness of Special Rules, Special Rules will not 
become ineffective or inoperative, thus High Court erred in negating selection--
Administrative Law. 
E 
For selection of Sub-Inspectors of Police for promotion to the rank 
of Inspector in 1997, Selection Committee adopted the criteria in terms 
of specific Police Order of 1965 issued under Police Act 1861, which stood 
amended upto 1998 and not in terms of U.P. Government Services 
(Criteria for Recruitment by Promotion) Rules 1994 framed under Article 
F 309 of the Constitution. Interviews were held under Order of 1965, the 
participants participated without demur and candidates were selected. 
Aggrieved candidate then challenged the selection. Single Judge of High 
Court negated the selection. Division Bench confirmed the same since the 
criteria specified in 1994 Rules was not followed and also that Selection 
Committee failed to prepare the list for each year. 
G 
H 
The question arose for consideration that the selection as effected 
was to be made under the specific Police Order of 1965 or the basis of 
seniority under the General U.P. Government Service (Criteria for 
Recruitment by Promotion) Rules, 1994 framed under Article 309 of the 
Constitution. 
948 
-
-
CHANDRA PRAKASH TJWARI I'. SHAKUNTALA SHUKLA 
949 
In appeals before this Court appellants submitted that by reason of A 
the order of 1965 being framed under Section 2 of the Police Act, the 
applicability of the Rules framed under Article 309 in 1994 is a total non-
issue; that the doctrine of estoppel by conduct is applicable due to the 
participation by the candidate in the selection process without demur; that 
the candidate does not have the right to challenge the appointment upon B 
due participation at the interview and also that there is no need for annual 
selections and thus can be clubbed. 
Respondents contended that the Government Order of 1965 being 
in the nature of executive instructions stood obliterated after the date of 
notification of the Rules framed under Article 309 since the executive order C 
is subordinate to that of the Legislature and as such the Rules framed 
under Article 309 would prevail for governing the terms and conditions 
of services of subordinate ranks of the police force. Admittedly the 
members of the subordinate ranks of the police force come under the 
purview of the rule making power of the Governor under Article 309 and 
also their service conditions. Order of 1965, falls short of becoming D 
statutory order as it is not a Rule made under Section 46(2) of the Police 
Act 1861; it is not published in the Official Gazette which is primary 
requirement of Section 46(2) and also Section 2 recognises only the 
executive power of the State. 
Allowing the appeals, the Court 
HELD: I.I. The guidelines contained in the Government Order of 
1965 have been under and in terms of the provisions of the Police Act. 
There is special conferment of power for framing of Rules .which would 
prevail over any other Rule. Since no other rule stands formulated and 
the Government Order of 1965 being taken as the existing rule pertaining 
to the subject matter presently under consideration with recent guidelines, 
E 
F 
its applicability cannot be doubted. Unless the General Rule specifically 
repeal the effectiveness of the special rules, question of the latter rule 
becoming ineffective or inoperative would not arise. In order to be G 
effective, an express mention is re_quired rather an imaginary repeal. It is 
now a well settled principle of law for which no dilation is further required 
that law Courts rather loath repeal by implication. The General Rule 
framed under Article 309 has been for all State Governme

Excerpt shown. Read the full judgment & AI analysis in Lexace.